# SUBHASH CHANDRA & ANR v. DELHI SUBORDINATE SERVICES SELECTION BOARD & ORS

- **Citation:** [2009] 12 S.C.R. 978
- **Court:** Supreme Court of India
- **Decided:** 2009-08-04
- **Case number:** Civil Appeal No. 5092 of 2009
- **Bench:** S.B. Sinha, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subhash-chandra-anr-v-delhi-subordinate-services-selection-board-ors-25122
- **Pages:** 70

## Headnote

-t
CONSTITUTION OF /NOIA, 1950:
c
Articles 341, 342, 338, 338A, 14, 15and16-Reservation
- Grant of benefit - Article 16(4) cannot be made applicable
for SC or ST in a State or Union Territory who have migrated
to another State or Union Territory and are not members of
D SC or ST - By virtue of Article 341, the Presidential orders
made under Clause (1) thereof acquire an overriding status
- Presence of Articles 338, 338A, 341, 342 preclude the
Union and States to legislate upon or frame policies
concerning the subject of reservation vis-a-vis inclusion of
E Castes/Tribes - When an amendment or alteration is to be
brought ab.out by a Parliamentary legislation, the purpose
cannot be achieved by taking recourse to circular letters - It
cannot be said that SC/ST notified as such in other States
would come within the purview of backward classes within the
F
meaning of Clause (4) of Article 16 - No recruitment is
permissible for a backward class against SC/ST quota.
PRACTICE & PROCEDURE:
In case of conflict between a decision of a Division Bench
G of two Judges and a decision of a larger Bench, in particular
a Constitution Bench, the Division Bench is bound by the
I
latter.
H
978
SUBHASH CHANDRA v. DELHI SUBORDINATE
979
SERVICES SELECTION BOARD
DOCTRINES/PRINCIPLES:
A
Doctrine of Protective Discrimination - Applicability of.
Principle of strict scrutiny test or closer scrutiny test or
higher level of scrutiny - Applicability of.
B
In the appeal and the writ petition, the interpretation
and/or application of the notifications and/or the circulars
issued by the National Capital Territory of Delhi in terms
~-
of Clause (1) of Article 341 of the Constitution of India is
involved.
c
In view of the rival contentions of the parties, the
questions which arose for consideration were:
(1) Having regard to the decisions of this Court in
Marri Chandra Shekhar Rao (1990 (3) SCC 130) and Action
D
tCommittee (1994 (5) SCC 244), the specification of a
particular Caste or Tribe to be a Scheduled Caste and
Scheduled Tribe being in relation to that State or Union
Territory, whether a person on his migration to another
State would carry the same status with him?
E
(2) Whether in view of the decisions of this Court in
Action Committee even where the similar Caste bearing
the same name having been declared to be the Scheduled
Caste both in the State to which he originally belonged
F
and the State and/or Union Territory to which he has
migrated would make any difference in view of the
provisions contained in Article 341 of the Constitution of
India?
(3) Whether in view of the decisions of the G
x
Constitution Bench of this Court in State of Maharashtra
vs. Mi/ind & ors. (2001) 1 SCC 4 and E. V. Chinnaia,'1 vs. State
of A.P. & ors. (2005) 1 sec 394 extension of notification
even to a migrant would amount to modification and/or
H
980
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A alteration of the notification which is impermissible in law
in view of clause (2) of Article 341 and clause (2) of Article
t
342 of the Constitution of India?
(4) Whether having regard to the provisions
8 contained in Articles 239 and 239AA of the Constitution
in relation to Union Territory it is permissible for the
Central Government to direct recruitment to the Union
Territory Services treating it to be akin to Central Civil
Services in view of the decisions of this Court in
Chandigarh Administration (2004) 1 SCC 530 and S.
C Pushpa (2005) 3 sec 1?
(5) Whether the ratio laid down by this Court in
Chandigarh Administration and S. Pushpa having not
taken into consideration the binding precedents in
D Constitution Bench in Milind, Chinnaiah and M.C.O. vs.
Veena & Ors. (2001) 6 sec 571 would constitute binding
precedents?
Allowing the appeal and writ petition, the Court
E
HELD: 1. When a Caste or a Tribe is designated as a
Scheduled Caste or Scheduled Tribe, the members
belonging thereto derive a bunch of benefits. Such
benefits may not only be confined to admission in
educational institu

## Text

_Characters 0–39,932 of 130,608. This is a partial read: ask again with offset=39932 for what follows._

[2009) 12 S.C.R. 978
A
SUBHASH CHANDRA & ANR.
I
v.
DELHI SUBORDINATE SERVICES SELECTION BOARD
& ORS.
(Civil Appeal No. 5092 of 2009)
B
AUGUST 4, 2009
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
-t
CONSTITUTION OF /NOIA, 1950:
c
Articles 341, 342, 338, 338A, 14, 15and16-Reservation
- Grant of benefit - Article 16(4) cannot be made applicable
for SC or ST in a State or Union Territory who have migrated
to another State or Union Territory and are not members of
D SC or ST - By virtue of Article 341, the Presidential orders
made under Clause (1) thereof acquire an overriding status
- Presence of Articles 338, 338A, 341, 342 preclude the
Union and States to legislate upon or frame policies
concerning the subject of reservation vis-a-vis inclusion of
E Castes/Tribes - When an amendment or alteration is to be
brought ab.out by a Parliamentary legislation, the purpose
cannot be achieved by taking recourse to circular letters - It
cannot be said that SC/ST notified as such in other States
would come within the purview of backward classes within the
F
meaning of Clause (4) of Article 16 - No recruitment is
permissible for a backward class against SC/ST quota.
PRACTICE & PROCEDURE:
In case of conflict between a decision of a Division Bench
G of two Judges and a decision of a larger Bench, in particular
a Constitution Bench, the Division Bench is bound by the
I
latter.
H
978
SUBHASH CHANDRA v. DELHI SUBORDINATE
979
SERVICES SELECTION BOARD
DOCTRINES/PRINCIPLES:
A
Doctrine of Protective Discrimination - Applicability of.
Principle of strict scrutiny test or closer scrutiny test or
higher level of scrutiny - Applicability of.
B
In the appeal and the writ petition, the interpretation
and/or application of the notifications and/or the circulars
issued by the National Capital Territory of Delhi in terms
~-
of Clause (1) of Article 341 of the Constitution of India is
involved.
c
In view of the rival contentions of the parties, the
questions which arose for consideration were:
(1) Having regard to the decisions of this Court in
Marri Chandra Shekhar Rao (1990 (3) SCC 130) and Action
D
tCommittee (1994 (5) SCC 244), the specification of a
particular Caste or Tribe to be a Scheduled Caste and
Scheduled Tribe being in relation to that State or Union
Territory, whether a person on his migration to another
State would carry the same status with him?
E
(2) Whether in view of the decisions of this Court in
Action Committee even where the similar Caste bearing
the same name having been declared to be the Scheduled
Caste both in the State to which he originally belonged
F
and the State and/or Union Territory to which he has
migrated would make any difference in view of the
provisions contained in Article 341 of the Constitution of
India?
(3) Whether in view of the decisions of the G
x
Constitution Bench of this Court in State of Maharashtra
vs. Mi/ind & ors. (2001) 1 SCC 4 and E. V. Chinnaia,'1 vs. State
of A.P. & ors. (2005) 1 sec 394 extension of notification
even to a migrant would amount to modification and/or
H
980
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A alteration of the notification which is impermissible in law
in view of clause (2) of Article 341 and clause (2) of Article
t
342 of the Constitution of India?
(4) Whether having regard to the provisions
8 contained in Articles 239 and 239AA of the Constitution
in relation to Union Territory it is permissible for the
Central Government to direct recruitment to the Union
Territory Services treating it to be akin to Central Civil
Services in view of the decisions of this Court in
Chandigarh Administration (2004) 1 SCC 530 and S.
C Pushpa (2005) 3 sec 1?
(5) Whether the ratio laid down by this Court in
Chandigarh Administration and S. Pushpa having not
taken into consideration the binding precedents in
D Constitution Bench in Milind, Chinnaiah and M.C.O. vs.
Veena & Ors. (2001) 6 sec 571 would constitute binding
precedents?
Allowing the appeal and writ petition, the Court
E
HELD: 1. When a Caste or a Tribe is designated as a
Scheduled Caste or Scheduled Tribe, the members
belonging thereto derive a bunch of benefits. Such
benefits may not only be confined to admission in
educational institutions, appointment in State or Central
F Civil Services, but also for contesting elections to the
seats reserved for them in the Panchayats and
Municipalities in lieu of the provisions of 73rd and 14th
Amendments to the Constitution. Benefits to the
members of the Scheduled Castes and Scheduled Tribes
G and other backward classes may also be conferred by
means of schemes formulated by the Central
Government or the State Government. [Para 25) [1008-GH; 1009-A]
H
2. Article 341 of the Constitution of India does not
SUBHASH CHANDRA v. DELHI SUBORDINATE
981
SERVICES SELECTION BOARD
make any distinction between a State and Union Territory A
__,;
except for the purpose of consultation with the Governor
'
or the Administrator, as the case may be. Such
consultation is necessary in view of the fact that it is for
the State machinery to identify such Caste or Tribe who
had suffered the centuries old ignominy and/ or suffered
B
other disadvantages. It is possible for a State to point out
that although a group of people may be belonging to a
caste or Tribe which is otherwise backward but having
regard to the social and economic advancement made by
that group, they should be excluded. [Para 25) [1009-B- c
CJ
3. Persons belonging to a particular Caste or Tribe
may suffer some disadvantages in one State but may not
suffer the same disadvantages in the other. The D
constitutional scheme, therefore, seeks to identify the
1social and economic backwardness of people having
regard to the State or Union Territory as a unit. The same
principle applies even to the minorities. [Para 25] [1009D-E]
E
Marri Chandra Shekhar Rao vs: Dean, Seth G. S. Medical
College & Ors. (1990 (3) sec 130), relied on.
4. The reservation in terms of clause (4) of Article 16
of the Constitution of India is fixed on a percentage basis.
F
The advertisement issued by the Delhi Subordinate
Services Selection Board clearly shows that the
percentage of reservation having regard to the Central
Government Rules which are applicable to the National
Capital Territory of Delhi would be 7.5% for Scheduled G
Tribes, 15% for Scheduled Castes and 27.5% for other
backward classes. No Scheduled Tribe has been
identified in the Union Territory. The Presidential Order in
regard to the Scheduled Castes speaks of the residents
of Delhi alone. Some of the Castes identified as
Scheduled Castes in some other States also find place H.
982
SUPREME COURT REPORTS
[2009) 12 S.C.R.
A in the Presidential Order issued for Delhi. [Para 26) (1009H; 1010-A-C]
5. The authoritative pronouncement of the
Constitution Bench in Ashok Kumar Thakur thus, clearly
8 shows that the proclamation made by the President of
India by Scheduled Caste Order is exhaustive. Only the
Parliament having regard to the Constitutional Scheme
can tinker therewith. [Para 34) (1022-B]
Ashok Kumar Thakur v. Union of India & Ors. (2008) 6
C SCC 1; Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra & Anr. 1994 (5) SCC 244; K. Balakrishnan vs.
K. Kama/am & Ors. (2004) 1 SCC 580; S. Pushpa & Ors. vs.
Sivachanmugavelu & Ors. (2005) 3 SCC 1; Union of India &
D Ors. vs. Dudh Nath Prasad (2000) 2 SCC 20; Chandigarh
Administration & Anr. vs. Surinder Kumar & Ors. (2004) 1
SCC 530; State of Maharashtra vs. Mi/ind & Ors. (2001) 1
SCC 4; E. V. Chinnaiah vs. State of A.P. & Ors. (2005) 1 SCC
394; Mi/ind, Chinnaiah and M.C.O. vs. Veena & Ors. (2001)
E 6 SCC 571; T.M.A. Pai Foundation and Ors. v. State of
Kernataka and Ors. (2002) 8 SCC 481; U.P. Public ·Service
Commission, Allahabad vs. Sanjay Kumar Singh (2003) 7
SCC 657 and Shree Surat Va/sad Ji/la K. M. G. Parish ad vs.
Union of India & Ors. (2007) 5 SCC 360, relied on.
F
6. Although Union Territories are administered by the
Central Government, yet it is difficult to conceive that
socio political aspect can be mixed up with the
administrative aspect. Article 341 leads to grant of
constitutional rights upon a person whose affinity to a
G caste/Tribe would attract the Constitution (Scheduled
Caste) Order or Constitution (Scheduled Tribe) Order.
Once a person comes within the purview of Presidential
promulgation, he would be entitled to constitutional and
other statutory or administrative benefits attached
H thereto. Such socio political rights created in our
•
,
..
SUBHASH CHANDRA v. DELHI SUBORDINATE
983
SERVICES SELECTION BOARD
Constitution cannot be segregated keeping in view the
A
administrative exigencies. If the principle applied in S.
Pushpa is to be given a logical extension, it will lead to
an absurdity, that the Scheduled Castes Order in a State
brought under the control of the President under Article
356 could be altered by virtue of a notification issued in
B
pursuance of Article 16(4) of the Constitution. Clause (4)
of Article 16 of the Constitution, cannot be made
applicable for the purpose of grant of benefit of
reservation for Scheduled Castes or Scheduled Tribes in
a State or Union Territory, who have migrated to another c
State or Union Territory and they are not members of the
Scheduled Castes and Scheduled Tribes. By virtue of
Article 341, the Presidential orders made under clause (1)
thereof acquire an overriding status. But for Articles 341
and 342 of the Constitution, it would have been possible
D
for both the Union and the States, to legislate upon, or
frame policies, concerning the subject of reservation, visa-vis inclusion of Castes/Tribes. The presence of Articles
338, 338A, 341, 342 in the Constitution clearly preclude
that. [Paras 37 and 38] [1026-D-H; 1027-A-B]
E
Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical
College & Ors. 1990 (3) SCC 130; S. Pushpa & Ors. Vs.
Sivachanmugavelu & Ors. (2005) 3 SCC 1; Chandigarh
Administration & Anr. vs. Surinder Kumar & Ors. (2004) 1
SCC 530; M.C.D. vs. Veena & Ors. (2001) 6 SCC 571 and
F
State of Maharashtra vs. Kumari Tanuja (1999) 2 SCC 462,
referred to.
·,
7 .1. Both the Central Government and the State
~
Government indisputably may lay down a policy decision
G
in regard to reservation having regard to Articles 15 and
16 of the Constitution of India but such a policy cannot
violate other constitutional provisions. A policy cannot
have primacy over the constitutional scheme. If for the
purposes of Articles 341 and 342 of the Constitution of H
984
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A India, State and the Union Territory are at par on the
ground of administrative exigibility or in exercise of the
administrative power, the constitutional interdict
contained in clause (2) of Article 341 or clause (2) of
Article 342 of the Constitution of India cannot be got rid
B of. [Para 40) [1028-G-H; 1029-A-B]
7.2. It is well known that what cannot be done directly
cannot be done indirectly. When an amendment or
alteration is to be brought about by a Parliamentary
Legislation, the same purpose cannot be achieved by
C taking recourse to circular letters. If the Central Civil
Services and the Union Territory Services are different,
keeping in view the constitutional schemes particularly
having regard to the proviso appended to Article 309 of
the Constitution of India, the same cannot be done away
D with only because a Union Territory administratively is
administered by the Central Government. Any direction
or policy decision, thus, must satisfy the constitutional
requirements laid down under Articles 341 and 342 of the
Constitution of India. If any other construction is made,
E a policy decision having regard to the decisions of this
Court will have to be treated as a proviso appended to
clause (2) of Article 341 of the Constitution of India and
would amount to deriding of the Constitution which is
impermissible in law. For identification of backward
F classes, it is necessary to undertake a study in a
particular State as to whether the migrants are required
to be treated as backward classes. Indisputably, the
classes contemplated by Article 16(4) may be wider than
those contemplated by Article 15(4). If they are backward
G classes for the purpose of Article 16(1) and 16(4) and not
Scheduled Castes and Scheduled Tribes, they will come
within the purview of the reservation for backward
classes and not the one which is exclusively meant for
Scheduled Castes and Scheduled Tribes within the
H
SUBHASH CHANDRA v. DELHI SUBORDINATE
985
SERVICES SELECTION BOARD
purview of reservation policy of the States. Moreover A
~
enabling provision contained in clause (4) of Article 16 of
the Constitution of India can of course be enforced by
reason of an executive direction but the same must be
made in terms of Article 77 or Article 162 of the
Constitution of India. [Para 41) [1029-C-H; 1030-A-C]
B
7.3. Furthermore, a circular letter does not have the
force of law Article 246 of the Constitution will, thus, have
no application where law making power is not resorted
to. Executive instructions contained in Article 77 and c
Article 162 refer to the law making power alone. No
material has been placed before the High Court or before
this Court to show that the Scheduled Castes or
Scheduled Tribes candidates migrated from another
State having regard to their socio economic position in
D
Delhi were required to be treated as backward classes.
'f~
It cannot be said that the members of scheduled castes
and scheduled tribes notified as such in other States
would come within the purview of the backward classes
within the meaning of clause (4) of Article 16 of the
Constitution of India. If a caste or tribe is notified in terms
E
of the Scheduled Caste Order or Scheduled Tribe Order,
,
the same must be done in terms of clause (1) of Article
341 as also that of Article 342 of the Constitution of India,
as the case may be. No deviation from the procedure laid
down therein is permissible in law. If any amendment/
F
alteration thereto is required to be made, recourse to the
procedure laid down under clause (2) thereof must be
resorted to. Reservations have been made in terms of the
-.. -
policy decision of the Central Government, namely, 7.5%
for the members of scheduled tribes, 15% for the
G
members of scheduled castes and 27% for the members
of backward classes. If the members of the scheduled
castes and scheduled tribes in other States are to be
treated as backward classes for Delhi; intensive studies
H
986
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A were required to be made in regard to the question
B
whether they would come within the purview of the
}
definition of 'backward classes' so as to answer the
description of ·socially and educationally backward'.
[Para 41] (1030-C-H; 1031-A-B]
7.4. When reservation for scheduled castes or
scheduled tribes had been earmarked, persons
answering the description thereto only can be appointed.
No recruitment is permissible for a backward class
against a scheduled caste or scheduled tribe quota. That
C itself would be violative of clauses (1) and (4) of Article
16 of the Constitution of India. Furthermore, if a person
is to be treated as scheduled caste or scheduled tribe in
terms of Article 341 of the Constitution of India, the benefit
attached thereto in all other areas must be conferred on
D him. A person cannot be treated to be a member of
scheduled caste for one purpose and not for another
purpose. The law relating to affirmative action and
protective discrimination by way of reservation of posts
for the members of the Scheduled Castes invoking
E Clause (4) of Article 16 of the Constitution of India is
reflected by constitutionalism, i.e.; the provisions of the
Constitution of India read with the executive instructions
issued by the National Capital Territory of Delhi in this
behalf which has the force of law in terms whereof only
F the classes of persons who would be entitled thereto
were determined. By judicial process or otherwise, the
said executive instructions which are consistent with the
constitutional scheme could not have brought about an
altogether different situation as a result whereof those
. '-
G who are residents of Delhi being belonging to the
members of the Scheduled Castes and, thus, entitled to
be regarded within the framework of the quota provided
for by the Government could not have been deprived
therefrom by way of bringing in another class of persons
H within the purview of the said category of Scheduled
SUBHASH CHANDRA v. DELHI SUBORDINATE
987
SERVICES SELECTION BOARD
Castes who are not entitled to the said benefit. By reason
A
of such an Act, those who are entitled to the benefit of
the doctrine of protective discrimination contained in
Clause (4) of Article 16 of the Constitution of India had
been deprived of their constitutional right. Once it is
found that the constitutional violation of this nature has
B
been committed, the Courts would be entitled to apply
the principle of strict scrutiny test or closer scrutiny test
or higher level of scrutiny. (Paras 42 and 43] (1031-F-H;
1032-A-F]
7.5. First responsibility of the court is to determine c
whether the ends purported to be sought by the
executive are "compelling." This process is under the
intense gaze of the court because the government is
impinging upon somebody else's core constitutional
- rights and therefore only the most pressing D
circumstances can justify the government action. The
other important responsibility is to inquire and assess
that the law is a narrowly tailored means of furthering
those governmental interests. Objectivity, both in terms
of quantifiable data and the intended objective, and time
E
bound prescriptions, (preferably with a sunset clause)"
are two measures which shall keep the State in good
stead while discharging the burden under the protective
discrimination mandate. The law must showcase
overinclusion or underinclusion or whatever other
F
requirement there may be through statistics before
moving ahead with the execution of law. [Para 43] (1036F-H; 1037-A-E]
Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai G
Patel and Ors. (2006) 8 sec 726; Punjab Water Supply and
Sewerage Board, Hoshiarpur v. Ranjodh Singh and Ors.
(2007) 2 SCC 491 and Indra Sawhney & Ors. v. Union of India
& Ors. 1992 Supp. (3) sec 212, relied on.
Saurabh Chaudri & Ors. v. Union of India & Ors. (2003)
H
988
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A 11 SCC 146; Mithu v. State of Punjab (1983) 2 SCC 277;
Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008)
3 SCC 1; United India Insurance Company Ltd. v. Ajay Sinha
& Anr. (2008) 7 SCC 454 and M. Nagaraj & Others v. Union
B
of India & Others, (2006) 8 SCC 212, referred to.
Johnson v. California, 543 U.S. 499, 505 (2005), referred
to.
8. Protective discrimination may be used to curtail the
extremely hard won civil and political rights granted by
C the Constitution. Rights of the accused as part of the fair
trial rights, equality rights, right to liberty and personal
autonomy and other such rights are to be fiercely
protected against any blind policy onslaught of the times.
The government must have a overwhelming compelling
D interest to justify limitations on the freedom of
association, free exercise of religion, free speech, right
to vote, right to travel et al. Strict scrutiny thus paves the
way for a more searching judicial scrutiny to guard
against invidious discriminations which could have been
E made by the State against group of people in violation of
the constitutional guaranty of just and equal laws. The
court must adopt a weighted balancing approach or in
other words pursue an even-handed balancing of the
interests. [Para 43] [1038-C-E]
F
G
H
9.1. It is now a well settled principle of law that a
division bench, in case of conflict between a decision of
a Division Bench of two Judges and a decision of a larger
Bench and in particular Constitution Bench, would be
bound by the latter. [Para 44] [1038-G-H; 1039-A]
9.2. Marri Chandra Shekhar Rao had been followed by
this Court in a large number of decisions including Three
Judge Bench decisions. Pushpa, therefore, could not
have ignored either Marri Chandra Shekhar Rao or other
. ~·
f
SUBHASH CHANDRA v. DELHI SUBORDINATE
989
SERVICES SELECTION BOARD
decisions following the same only on the basis of an
A
administrative circular issued or otherwise and more so
when the Constitutional scheme as contained in clause
(1) of Articles 341 and 342 of the Constitution of India
putting the State and Union Territory in the same bracket.
Following Oayanand, therefore, this Court is of the
B
opinion that the dicta in Pushpa is an obiter and does not
lay down any binding ratio. [Para 46) [1047-8-D]
E. V. Chinnaiah vs. State of A.P. & ors. (2005) 1 sec
394, followed.
S. Pushpa & Ors. Vs. Sivachanmugavelu & Ors. (2005)
3 sec 1, dissented from.
c
State of Maharashtra VS. Mi/ind & ors. (2001) 1 sec 4;
Mis Sardar Associates v. Punjab & Sind Bank, CAs @ SLP o
"" (C) Nos. 5249-5250 of 2008 decided by Supreme Court on
31st July, 2009; Harminder Kaur & Ors. v. Union of India &
Ors. 2009 (7) SCALE 204; Oriental Insurance Company
Limited v. Mohd. Nasir and Another (2009) 6 SCC 280; India
Cement Ltd. and Others v. State of Tamil Nadu and Others
E
(1990) 1 SCC 12; Synthetics and Chemicals Ltd. and Others
v. State of UP. and Others (1990) 1 SCC 109; Central Board
i
of Oawoodi Bohra Community & Anr. v. State of Maharashtra
& Anr. (2005) 2 SCC 673; Nagar Palika Nigam v. Krishi Upaj
Mandi Samiti & Ors. (2008) AIR SCW 7914 and Official
Liquidator v. Dayanand & Ors. (2008) 10 SCC 1, relied on.
F
I
de Freitas v. Benny [1976) AC 239; Reckley v. Minister
of Public Safety and Immigration (No. 2) [1996) A.C.527;
Lewis v. Aft. Gen. of Jamaica [2001) 2 AC 50 and Attorney
General v. Blake [(1997) Ch D; (1998) Ch 439 CA : (2001)
G
'f 1 A.C.268 HL, referred to.
Black's Law Dictionary, 8th edition, 2004, referred to.
H
990
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A
"Final Appellate Courts Overruling Their Own "Wrong"
~
Precedents: The Ongoing Search For Principle" by B. V. Harris
'
(2002) 112 LQR 408-427; SIR Richard Buxob : How the
Common Law Gets Made: Hedley Byrne and Other
Cautionary Tales" (2009) 125 L.Q.R. 60 and "A Decision Per
B lncuriam?" -Prof.A. W. Brian Simpson, The Law Quarterly
Review, volume 125, July 2009, p.433, referred to.
Case Law Reference:
1990 (3) sec 130
relied on
Para 13
r
c
1994 (5) sec 244
relied on
Para 13
(2004) 1 sec 580
relied on
Para 13
(2005) 3 sec 1
relied on
Para 13
D
(2000) 2 sec 20
relied on
Para 13
(2004) 1 sec 530
relied on
Para 16
(2001) 1 sec 4
relied on
Para 18
E
(2005) 1 sec 394
relied on
Para 18
(2001) 6 SCC.571
relied on
Para 18
(2002) 8 sec 481
relied on
Para 25
(2003) 1 sec 657
relied on
Para 32
F
(2001) 5 sec 360
relied on
Para 33
(2008) 6 sec 1
relied on
Para 34
(1999) 2 sec 462
referred to
Para 35
-~
G
(2006) 8 sec 126
relied on
Para 41
y
(2001) 2 sec 491
relied on
Para 41
1992 Supp. (3) sec 212 relied on
Para 41
H
SUBHASH CHANDRA v. DELHI SUBORDINATE
991
SERVICES SELECTION BOARD
(2003) 11 sec 146
referred to
Para 43
A
(1983) 2 sec 211
referred to
Para 43
(2008) 3 sec 1
referred to
Para 43
(2008) 1 sec 454
referred to
Para 43
B
(2006) 8 sec 212
referred to
Para 43
543 U.S. 499, 505 (2005) referred to
Para 43
2009 (7) SCALE 204
relied on
Para 44 c
(2009) 6 sec 280
relied on
Para 44
[1976) AC 239
referred to
Para 44
[1996) A.C.527
referred to
Para 44
[2001) 2 AC 50
referred to
Para 44
D
>-
(1997) Ch D; (1998) Ch 439 CA :
(2001) 1 A.C.268 HL
referred to
Para 44
(1990) 1 sec 12
relied on
Para 45
E
(1990) 1 sec 109
relied on
Para 45
'JI.
(2005) 2 sec 673
relied on
Para 45
(2008) AIR sew 7914
relied on
Para 45
F
(2008) 1 o sec 1
relied on
Para 45
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5092 of 2009.
From the Judgment & Order dated 13.5.2005 of the High G
Court of Delhi at New Delhi in LP.A. No. 625 of 2002.
"!
WITH
W.P. (C) No. 507 of 2006.
H
992
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A
U.U. Lalit, A. Mararputham, Rakesh Kumar Khanna, Tatini
Basu, Gaurav Gupta, Sudhir Nandrajog, Geeta Luthra, Parinay
t
D Shah, Sanjeev, Sahay, D.N. Goburdhan, Dr. Krishan Singh
Chauhan, Gyan Mitra, K.C. Lamba, Chand Kiran, Ramesh
Kumar, Sanjiv Sen, Praveen Swarup, Shashi Kiran, A. Tarque,
B Anil Katiyar, Renu George, Dinesh Kumar Garg, Aruna Mathur,
S.N. Terdol, Sushma Suri D.S. Mahra, Rashmi Khanna, Surya
Kant, O.P. Bhadani, Pranav Vyas for the appearing parties.
The Judgment of the Court was delivered by
c
5.8. SINHA, J. 1. Leave granted in SLP (C) No.24327 of
2005.
2. Interpretation and/ or application of the notifications and/
or the circulars issued by the National Capital Territory of Delhi
D in terms of clause (1) of Article 341 of the Constitution of India
is involved herein.
3. It arises out of a judgment and order dated 13.05.2005
passed by a Division Bench of the High Court of Delhi
E
dismissing an appeal preferred from an order passed by a
learned Single Judge of the said Court.
The writ petition was filed by the appellant society which
is registered under the Societies Registration Act, with its
objects amongst others 'upliftment of Backwards, Scheduled
F Castes and others of Delhi in education, social and cultural
fields and to apply for and get all kinds of facilitation and
relaxation and for safeguarding their interest in Government
jobs'.
G
4. The background facts involving filing of this appeal are
as follows:
The members of Scheduled Casts and Scheduled Tribes
have an important place in our constitutional scheme. Article
341 of the Constitution empowers the President to specify the
H castes, races or tribes or part of or groups within castes, races
SUBHASH CHANDRA v. DELHI SUBORDINATE
993
SERVICES SELECTION BOARD [S.B. SINHA, J.]
or tribes with respect to any State or Union Territory for the
A
•
purposes of the Constitution deemed to be Scheduled Castes
in relation to that State or Union Territory as the case may be.
Similar provision is contained in Article 342 of the Constitution
of India with regard to the members of the Scheduled Tribes.
Clause (2) of Article 341 which is relevant for our purpose reads
B
as under:
"(2) Parliament may by law include in or exclude from the
list of Scheduled Castes specified in a notification issued
under clause (1) any caste, race or tribe or part of or group c
within any caste, race or tribe, but save as aforesaid a
notification issued under the said clause shall not be
varied by any subsequent notification."
5. Private respondents and/or their parents are migrants
to Delhi. In their native places, they were declared to be the
D
!-
members of the Scheduled Castes.
6. Indisputably, the Ministry of Home Affairs issued a
circular on or about 2.5.1975, in terms whereof the manner in
which the claim of a person as being belonging to Scheduled
E
Castes or Scheduled Tribes is required to be verified was laid
--,/..
down. Such verification was to be made having regard to the
Presidential order specifying the Scheduled Castes and
Scheduled Tribes in relation to the concerned State.
In the matter of verification of the caste of migrants, it was
F
laid down:
"1. . General (Applications in all cases):-
Where a person claims to belong to a Scheduled
G
Castes and Scheduled Tribes by birth it could be
"t
verified:-
(i)
That .the person and his parents actually belong to
the community claimed.
H
994
SUPREME COURT REPORTS
[2009) 12 S.C.R.
A
(ii)
That this community includes in the Presidential
B
Orders specifying the Scheduled Caste and
Scheduled Tribes in relation to the concerned State.
(iii) That the person belongs to that State and to the
area within that State in respect of which the
community has been scheduled.
(iv)
If the person claims to be a Scheduled Caste, he
should profess either the Hindu or the Sikh religion.
C
(v)
If the person claims to be a Scheduled Tribe, he may
profess any religion.
D
E
F
G
H
2. Case of Migration:-
(i)
Where a person migrates from the portion of the
State in respect of which his community is
scheduled to another part of the same State in
respect of which his community is not scheduled he
will continue to be deemed to be a member of the
Scheduled Caste or the Scheduled Tribe as the
case may be in relation to that State.
(ii)
Where a person migrates from one State to
another, he can claim to belong to a Scheduled
Caste or Scheduled Tribe only in relation to the
State to which he originally belonged and not in
respect of the State to which he has migrated."
7. Yet again, by way of a clarification issued by the National
Capital Territory of Delhi dated 22.3.1977, it was, inter alia,
stated:
"2. As required under Article 341 and 342 of the
Constitution, the President has, with respect to every State
and Union Territory and where it is State after consultation
with the Governor of the concerned State, issued orders
.L
SUBHASH CHANDRA v. DELHI SUBORDINATE
995
SERVICES SELECTION BOARD [S.B. SINHA, J.]
notifying various Castes and Tribes as Scheduled Castes
A
and Scheduled Tribes in relation that State or Union
Territory from time tome. The inter State area restrictions
have been deliberately imposed so that the people
belonging to the specific community residing in a specific
area, which has been assessed to qualify for Scheduled
B
Castes or Scheduled Tribes status, only benefit from the
facility provided for them. Since the people belonging to
the same caste but living in different State/Union Territories
may not necessarily suffer from the such disabilities, it is
possible that two persons belonging to the same caste but c
living in different State/Union Territories may not both be
treated to belong Scheduled Caste/Tribes or vice versa.
Thus the residence of a particular person a particular
locality assumes a special significance. The residence has
not been understood in the literal or ordinary sense of the
D
word. On the other hand it connotes the permanent
residence of a person on the date of the notification of the
Presidential Order scheduling his caste/tribe in relation to
that locality. Thus a person who is temporarily away from
his permanent place of abode at the time of the notification
of the Presidential O~der applicable in his case say for
E
example to earn a living or seek education etc. can also
be regarded as Scheduled Caste or a Scheduled Tribe,
as the case may be, with regard to his relation to his State
U.T. but he cannot be treated as such in relation to the
place of his temporary residence notwithstanding the fact
F
that the name of his caste/tribe has been scheduled in
respect of that area in any Presidential Order."
8. Despite the same, however, on or about 8.4.1994, yet
again a circular letter was issued; the relevant portions whereof G
read as under :
"Subject: Issuing of other Backward Class certificates
to migrants from other States/UT.
H
996
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A
Sir,
l
1.
In continuation of the DEPT's letter of 36012/22/93Estt.!SCT) dated 15th November, 1993, I am
directed to say that it has been represented to this
B
Department that persons belonging to OBCS who
have migrated from one State to another for the
purpose of employment, education etc. experience
great difficulty in obtaining caste certificates from
the States from which they have migrated, in order
c
to remove this difficulty it has been decided that the
prescribed authority of a State/UT Administration in
terms of the DEPT letter aNo.16012/22/93-Estt.
(SCT) dated 15th November, 1993 may issue the
OBCS certificates to a person who has migrated
D
from another States on the production of a genuine
certificate issued to his father by the prescribed
authority of the State his father's origin except
where the prescribed authority feels that a detailed
enquiry is necessary through the state of origin
before the issue of the certificate.
E
2.
The certificates will be issued irrespectively of
whether the OBC candidate in question is included
in the list of OBC pertaining to the State/U.T. to
which the person has migrated. The facility does not
F
alter the OBC status of the person in relation to the
one at the other State/U.T. The OBC person on
migration from the State/U.T. of his origin in another
State/U.T. where his caste is not in the OBC list is
entitled to the concession/benefits admissible to the
G
OBCS from the state of his origin and Union
Government but not from the State where he has
y
migrated."
9. Keeping in view the aforementioned directions issued
by the Union Territory, an advertisement was issued by the State
H Subordinate Selection Board. General instructions issued
i
SUBHASH CHANDRA v. DELHI SUBORDINATE
997
SERVICES SELECTION BOARD [S.B. SINHA, J.]
therein, inter alia, read as under :
"(2) SC and OBC candidates must furnish certificates
issued by the competent authority of Government of NCT
of Delhi issued on or before the closing date of receipt of
A
application forms. (Illegible)"
B
10. Questioning the legality and/or validity of the said
circular, Shri Kunwar Pal and 22 others, claiming themselves
to be entitled to the benefits of the aforementioned Presidential
Notification declaring their caste to be Scheduled Castes but
keeping in view the nature of verification specified by reason
C
of the aforementioned circulars, filed writ petition in the High
Court of Delhi at New Delhi which was registered as Civil Writ
Petition No.5061 of 2001 praying, inter alia, for the following
reliefs:
"(i)
(ii)
certiorari quashing the entire action of the
responde:nts in not considering the Scheduled
Castes certificates of the petitioners (Annexure P3)
collectively and stating them not to be valid
certificates:
mandamus directing the respondents to consider
and appoint the petitioners to be posts of Assistant
Teachers (Primary)-Hindi under reserved
categories of Scheduled Castes as per petitioners'
Scheduled castes certificates (Annexure P3)
Collectively.
D
E
F
11. The Government of National Capital Territory having
been served with a notice in the said writ application filed a
counter affidavit contending, inter alia, that the notification
G
'-f.
involved two sets of castes/categories certificate' one in relation
to the original inhabitants and the other relating to the migrants
and stating :
"In other words candidates belonging to SC/ST/OBC
Castes/communities whose state/UT of origin is other than
H
998
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A
the NCT of Delhi are not at all, eligible for benefit of
reservation in the services/posts under the Govt. Of Delhi
t
and the Local/Autonomous Bodies sub-ordinate to the
said Government. The benefit of reservation in the services/
posts in Government of Delhi and Local/Autonomous
B
bodies is legally available to only those candidates who
fall in the first category. The candidates falling in the
second category can claim the benefit of reservation in the
services/posts under the Central Government as well as
Govt. of the state/U.T. of their origin. Such candidates are
c
not, at all, entitled for grant of benefit of reser\iation in the
services/posts under the Government of Delhi and Local/
Autonomous bodies subordinate to the said Govt."
12. A learned Single Judge of the said Court, however,
D
upon construction of clause (2) of the circular letter dated
2.5.1975, held as under:
~
"A reading of the aforesaid clause, however, shows that
the same relates to a person who migrates from one State
to another. In the present case the candidates are the
E
progenies of person who had migrated. In my considered
view there is a difference between the first generation
migrant and the progenies of the said migrant. The benefit
may be denied to the first generation migrant on the basis
of the said circular but it cannot be denied to his progenies
F
who are born and brought up in the migrated State."
13. Taking note of the fact that Delhi is an amalgam of
people from various parts of the country and, thus, the benefit
of the aforementioned Presidential notification, may not be
G
extended to those who had migrated from other States, inter
alia, raised a question as to what should be the cut off date to
determine as to who is a Delhite.
Opining that the circular letters had been issued with the
object of protecting the rights of the persons who may be away
H from his State would fall in the category of that State and that
SUBHASH CHANDRA v. DELHI SUBORDINATE
999
SERVICES SELECTION BOARD [S.B. SINHA, J.]
only with a view to prevent injustice to such persons that the
A
said circular had been issued. Referring to the decisions in
Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical
College & Ors. [(1990) 3 SCC 130] and Action Committee on
Issue of Caste Certificate to Scheduled Castes and
Scheduled Tribes in the State of Maharashtra & anr. [(1994)
B
5 sec 244], it was held :
"In my considered view the aforesaid judgmeint would not
,
come to the aid to the respondents since the present case
is not one of a similar nature. The benefit of reservation is c
sought by such of the petitioners who are born and brought
up in Delhi but whose father or forefathers happened to
migrate to Delhi over the last number of years."
The writ petitioners before the High Court, however,
strongly relied upon the decision of this Court in K.
D
>-
Balakrishnan v. K. Kama/am & Ors. [(2004) 1 SCC 580] and
S.Pushpa & Ors. v. Sivachanmugavelu & Ors. [(2005) 3 SCC
1].
Noticing the dictionary meaning of the words 'domicile' and
E
'residents'. as noticed by this Court in Union of India & Ors. v . .
1
Dudh Nath Prasad [(2000) 2 SCC 20], the learned Judge was
held that widest amplitude for granting benefits of rese•rvations
should be given to the said circulars.
Holding that there is no rationale as to why the respondents
F
suddenly sought to bring in the restriction now, it was opined :
"In view of the aforesaid a writ of mandamus is issued to
#·f
appoint such of the petitioners in the present writ pe\titions
who are born and brought up in Delhi, the caste is nC1tified
G
as a reserved caste .in Delhi but the certificate issw3d to
them is on the basis of the certificate issued to their fathers
who were the migrants from other States."
14. The Division Bench of the said court dismissed the
intra court appeal preferred thereagainst by the De:lhi
H
1000
SUPREME COURT REPORTS
[2009] 12 S.C.R.
A Subordinate Service Selection Board and another, holding :
t
"Therefore, it is clear that for States inter se, the matters
are considered differently. In the instant case, it is an
accepted position that the original petitioners were born
8
in the State of Delhi. Therefore, they are Scheduled Tribes
in Delhi and the Tribe/Caste is also recognised in Delhi
as a reserved category. There is no dispute that the same
caste to which their parents belonged in other State is also
recognized as a reserved category."
c
15. Mr. U.U. Lalit, learned senior counsel appearing on
behalf of the appellants, would contend :
(1)
a person belonging to a caste notified as Scheduled
Castes in one State cannot automatically claim the
D
benefit of any notification specifying a similar caste
in another State or Union Territory.
(2)
Although a distinction lies between a State Civil
Service and a Central Civil Service, and inasmuch
as in the latter, people from all over the country are
E
entitled to be considered for appointment keeping
in view the plain ianguage contained in clause (1)
of Article 341 of the Constitution of India, such a
benefit cannot be conferred on a person who had
migrated from one State to another State/Union
F
Territory.
(3)
In interpreting such a notification, the High Court
should have used the principle of contextual
interpretation and not a beneficent legislation.
. ....
G
16. Mr. Mariarputham, learned Senior Counsel appearing
on behalf of the Union of India, Mr. Rakesh Kumar Khanna,
learned Senior Counsel appearing on behalf of the New Delhi
Municipal Corporation and Dr.